Final Exam Cheat Sheet Study Guide
Final Exam Cheat Sheet Study Guide Crim C144
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This 3 page Study Guide was uploaded by Edward Avakian on Wednesday March 2, 2016. The Study Guide belongs to Crim C144 at University of California - Irvine taught by James Meeker in Winter 2016. Since its upload, it has received 132 views. For similar materials see Criminal Law in Criminology and Criminal Justice at University of California - Irvine.
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Arson: has to be shown that Ds act resulted in the intended act. ** EXCULPATION: Principles of Justification: Protetion of Life/Person: People v Goetz (a person may use deadly force in selfdefense creating unreasonable risk by driving unsafe, results in death of passenger, the causation is recklessness. if he reasonably belives that said force is necessary to protect himself; objective standard). –US v Peterson (retreat not an available option, threatened, right to selfdefense arises whe there is necessity; selfgenerated to kill, encouraged the fight, cannot use *Foreseeability & Coincidence: People v Acosta (Ds conduct was a proximate cause and a foreseeable consequence, his actions lead to aggression). State v Kelly (killed husband with scissors, claimed selfdefense, convicted for reckless manslaughter). –State v Norman someone’s death. (killed husband while asleep, no selfdefense). –State v Abbot (retreat was there, but acted upon selfdefense)MPC=deadly force when no retreat, but you should retreat. –Tenessee v Garner (lethal force may only be used in order to retake an escaped felon, which *The Significance of Resulting Harm=Causation: People v Arzon (criminally liable for death bcz his felony (arson) killed someone else, the officer has probable cause to believe that the suspect poses a threat or serious physical injury to the officers and others, lethal force is not authorized against nonviolent suspecs, violated his rights). –Durham v State (anofficer may use deadly force if necessary direct cause, foreseeability). against any suspect physically resisting arrest, even if the subject of the arrest only constitutes a misdemeanor, he wasn’t armed Stephenson v State (poison cause of death, or Ds conduct) Commonwealth v Root (reckless conduct leading to death, but not the though). –People v Unger (defense of necessity, scared for his life, he booked it, break the law to avoid a greater evil). –Excuse Defenses: 1) involuntary actions 2) actors knowledge of conduct, right from wrong in a legal sense 3) impairments or deficiencies in direct cause) State v Mcfadden (may be liable if evidence shoes Ds conduct was a violation=make wrong choices. –Trueman rule=when confronted with deadly force, one has the right to use deadly force. proximate cause of the death) Duress: State v Toscano (acting under duress defense, the defense applies to crimes other than murder if an individual participated in conduct because he was coerced to do so by the use of force). –Princples of excuse=intoxication: People v Hood (voluntary Commonwealth v Atencio (Russian roulette, liable, reckless activity leading to death). intoxication is not a defense to the crime of assault, immenint danger. –Mental Disorder: the defense of Legal Insanity: M’Naghten’s Case (insanity defense, said he was told to do the crime, verdict said not guilty, didn’t know the nature of the act he was doing, didn’t *Subsequent Human Actions intended to produce result: People v Campbell (encouraging another person to kill themselves does know it was wrong). 5 elements of McNaughten Ruel: 1) disease of the minds 2) meaning of know 3) nature and quality of act 4) focus not mean intentional murder). on the cognitive test=right from wrongcant controlwho decides. –Durham Rule: Durham v US (a person is not criminally responsible if act is a result of mental disease). If the hallucination is part of pyschosis (not voluntary drugs consumption) it will be treated as an People v Kevorkian (intentionally providing so another commits suicide is not murder, novus actus interveniens (individual act/decision). insanity defense. Diminished Capacity: US v Brawner (a person is not responsible for criminal conduct if at the time of such conduct as a result of * ATTEMPT : crimes not recognized under CL because they require act mental disease or defect, he lacked substantial capacity either to appreciate the criminality of I conduct or conform his conduct to the & intent (no act if the crime is not completed). If have specific intent, you have an attempted assault. *Attempt=Mens Rea (specific intent to commit requirements of the law). –Clark v Arizona (claimed insanity, judge said he intentionally killed officer, denied testimony or evidence). Changing patterns of excuse: Robinson v Cali (cruel and unusual punishment, punished for status, violated the 14 amendment). a crime that is never completed: Smallwood v State (no intent to kill with HIV) Overt intentional act short of completion, last step, is an attempt. Powell v Texas (punished for public intoxication, claimed it was out of his control, punished for disease). –Future threats do not justify Commonwealth v Peaslee (attempt is either an act that would bring about the selfdefense. CL=deadly force only when threat, or against a felony. MPC=nodeadly force in a citizens arrest. ** Theft Offenses: The means of acquisition: Trespassory Takings: Commonwealth v Tluchak (were not guilty of larceny, one who substantive crime if not for the unforeseen interruption or if not for a mistake of judgment. *Attempt=Actus Reus (steps taken to complete a crime that’s never has legal possession of goods cannot be convicted of larceny, no carrying away or trespassory taking here). –Misappropriation: Nolan v State (servant who converts owners money is guilty of larceny and embezzlement). –Fraud=the use of deception to obtain the completed). Jury verdict decides intent based on social coditions and race: McQuirter v State (charged with attempted rape) People v Rizzo (no attempt possession or title of anothers property. –Hufstetler v State (petit larceny, stole gas, no payment). –Graham v US (one who obtains to commit robbery, because they had not found the person they intended to rob, money from another upon the representation that he will perform a certain service there with for the latter, intedning at the time to convert the money, and actually converting it, to his own use, guilty of larceny). –People v Ashley (to support a conviction of theft for dangerous proximity to the completion of the crime:when an act is so near to the result that the danger of success is very great). US v Jackson (attempt to commit obtaining property by fake pretenses, it must be shown with intent to defraud the owner of his property, and that the owner is in fact robbery because of the substantial step they took that day to do it even though it defrauded) –Nelson v US (no proof of intent upon his part to defraud his victim, intent is presumed from the result of the action). Consolidation=traditional theft: State v Miller (an intangible like credit didn’t seem to be property; meaning possession was not didn’t work out)=MPC test State v Davis (solicitation, verbal agreement and conspiracy didn’t lead to thecompletion of attempt, mere acts of preparation, failing to against the statute). –US v Girard (“thing of value” such as government documents (DEA) are generally construed to cover tangibles as well as intangibles). –Regina v Stewart (even if confidential info were to be regarded as property under civil law, it doesn’t lead directly or proximately to the completion of a crime is not an attempt crime) *Attempt=Impossibility: People v Jaffe (a person cannot be prosecuted for automatically follow that it qualifies as property for the purposes of criminal law). –Skilling v US (The intangible right of honest services attempting to do an act that had it actually been completed, would not have means the right not to haves one’s fiduciaries accept bribes and kickbacks). Theft Offenses: Mens Rea: People v Brown (there must be intent proven that the defendants intended to deprive the owner of his constituted a criminal offense, no offense occurred). People v Duglash (a person is guilty of attempt when with the intent to commit property permenantly). –Regina v Feelay (judge says no defense that D intended to pay it back after borrowing, that is up to the jury to a crime, he engages in conduct that tends to effect the commission of such verdict or believe). –People v Reid (claim of right is not a defense to robbery/crimes involving force). Theft Law=5 elements of common law larceny: 1) trespassory taking 2) carrying away 3) valuable personal property 4) of another 5) crime, impossibility cant be used as a defense to attempt murder). Legal Impossibility applies to cirucmstances where: 1) The motive, desire, intent to permanently deprive. –Grand Larceny=felony, robbery. –Larceny by servant (employee)=constructive possession. –Larceny by finder=for CL if person found property and kept, that’s larceny, the intent at the time not after. –Larceny by bailee=under CL no expectation is to perform an act that violates the law 2) Theres intention to perform an act 3) Theres a performance of the intended act 4) The consequence resulting trespassory taking, because owner gave the property to the bailee, just larceny. –Larceny by trick=while obtaining property intends to from the intended act doesn’t result in a crime. (the defense that what the actor misappropriate it under CL. –Embezzlement (fraudulent conversion)=requires more asportation than CL larceny, claim of right defenses. –Receiving stolen goods=to be guilty, the receiver must know they are stolen, subjective test, attempt of receiving stole attempted was not a crime. –Conditional Imposs: law requires a particular condition prior to the attempt but condition not met (shooting thinking its loaded). –Factual goods, accessory after the fact to larceny. –Robbery=aggrevated assault, larceny by force or threat, claim of right defenses to the Imposs: attempt an offense but no way of completing. –Probable Desistence Test: robbery, but not to the assault. –Extortion (blackmail)= 1) most jurisdictions=one who makes threats for the purpose of obtaining money or property 2) Minority=to be guilty one must actually obtain by means of threats, but can also be attempted extortion. More than preparation, one less step than last, stopping is impossible at this point. *Group Criminality: Accountabilty for the Acts of Others: Mens Rea for Actions: Hicks v US (has to be proff that the words one uses had the specific intent to encourage or further the killing, he didn’t aid or assist, just there; for strict liability crime the D must know that they are aiding and abetting the crime. State v Gladstone (The aider/abetter must do something in association or connection with the principal to accomplish the crime, he didn’t encourage. Accomplices: MPC requires that the actor have the purpose of promoting or facilitating the commission of a crime. –State v Mccvay (jury decides if his negligence and reckless knowledge of a possible danger to human life, he can be responsible for manslaughter). People v Russell (liability as accessories to the killing, they aided eachother, knew it is life threatening to shoot around, someone died, intentional aid). –People v Luparello (vicarious liability, he is an accessory before the fact, he led and abetted his coconspirators to get into & someone died, accomplice is liable for the crime committed rather than the intended crime). Group Criminality: Actus Reus=Encouragement: Wilcox v Jeffrey Kings Bench Division (aiding and abetting, even though he didn’t know the person who committed illegal act, he knew it was illegal, he is accessorailly liable. Pinkerton Doctrine=can be charged with other offenses along with hs if these offenses are within that conspirational arrangement(s). Liability distinctions: State v Hayes (Hill had no intent, just opened window for D, they must have a common motive and design to be charged together) Liability within the Corporate Framework: Commonwealth v BFC (corporation criminally liable for its agents). –Gordon v US (an employer is chargeable with willfulness or guilty knowledge of employee who violates law in the course of the job). –US v Park (CEO responsible to ensure what company does right or wrong, strict liability) * CONSPIRACY (AR: agreement, MR:intent to commit). An agreement to commit an offense, before it actually happens, no merger. A form of accessory liability, individuals agree to commit a crime and are held liable for the actions in the group who also agreed or know about it. It is punishable whether or not the crime happens, before it happens. CL: as soon as agreement is formed they are guilty. AR of Conspiracy: Interstate Circuit v US (had knowledge and subsequently agreed, eed not be direct, but may be inferred from the acts taken by conspirators). MR of Conspiracy: People v Laurie (he knew his business was being used for illegal acitivity but he was not doing it, but hes involved in the conspiracy, special interest) Conspiracy as a form of accessorial liability: Pinkerton v US (an overt act of one partner may be the act of all without any new agreement specifically directed to that act, vicarious liability of coconspirators)MPC punishes preparation, overt act=attempt. Single/Multiple Conspiracies: Kotteakos v US (Conspiracy, a lot of members, common scheme in separate distinct conspirators). –US v Bruno (2 different conspiracies, but put together because one benfited the other in a whole). –US v McDermott (passing insider trading info on agreement to all members of a conspiracy is an essential element of the conspiracy). –Gebardj v US (absent involvement of the women, the man cannot be in a conspiracy by himself) =Wharton Rule: one person cant conspire to commit a crime that takes, it requires 2 people. –Garcia v State (under Indiana law, so long as the Ds mind at the time when she communicated the agreement among the conspirators to carry out the conspiracy shes guilty)MPC: as long as D believes it, unilateral conspiracy. RICO: to stop organized crime/enterprises/big conspiracies (racketeering). Features: 1) Purpose 2) relationships among those in the enterprise 3) things that connect those associations with and for the purpose of the enterprise. –Boyle v US (an association of fact enterprise must have a structure). –US v Elliot (to be convicted as a member of an enterprise/conspiracy under RICO, must be involved in an agreement with atleast two predicate crimes, Elliot wasn’t, just a conspiracy). –3 ways to establish Conspiracy: 1) evidence of agreement (need not be written) 2) testimony of a coconspirator 3) hearsay evidence (out of court evidence, statement). **Abondonment in conspiracy: not a defense under CL because crime is completed as soon as the agreement is made. MPC allows it, substantial steps to prevent commission, taking acts to stop it, go away, or tell police. –US v Cummins (not a defense to the commission of the crime, but a defense to the conspiracy; taking stolen bonds across lines not knowing he is crossing lines). CL: takes 2 to make a conspiracy.MPC: unilateral conspiracy=one can be convicted even though the other has no intention, or is an exception to the crime. Dang. Prox. to success test(physical proximity test)=looking at the seriousness of the offense intended; the closeness to completion of the crime; and the probability the conduct would actually have resulted in completion of the crime. indispensable element test=asks whether defendant have gotten control of everything they need to complete the crime. unequivocality test (res ipsa loquiter test [the act speaks for itself])=examines the likelihood the defendant won't complete the crime. probable desistance test=a dangerous person test that focuses on how far defendants have gone, not on what's left for them to do to complete the crime. substantial steps test (MPC test)=in the Model Penal Code, substantial acts toward completion of a crime and that strongly corroborate the actor's intent to commit the crime defense of voluntary abandonment=the actor voluntarily and completely gives up his criminal purpose before completing the offense Are inchoate crimes treated the same as substantive crimes in the common law?=Inchoate crimes are typically treated as a lesser offense than the substantive crime. What is the punishment for inchoate crimes under the MPC?=In a significant departure from common law tradition, the Code provides for punishment of the inchoate offenses at the same level as the substantive crime, with the exception of crimes that carry a maximum penalty of life imprisonment cont.=An attempt, solicitation, or conspiracy to commit one of these crimes constitutes a felony of the second degree. Under the MPC, can a judge dismiss the prosecution of an inchoate offense?=Yes, the Code grants the trial judge authority to dismiss a prosecution of an inchoate offense, or to impose a sentence for a crime of a lower degree than is otherwise allowed, if the defendant's conduct was so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to society justifying his conviction and punishment at ordinary level. The five tests to determine the actus reus of criminal attempt. What is the Last Act Test?=An attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. What is the Physical Proximity Test?=The defendant's conduct need not reach the last act but must be "proximate" to the completed crime. What is the Dangerous Proximity Test?=An attempt occurs when the defendant's conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great." What is the Indispensable Test?=An attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. What is the Probable Desistence Test?=An attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. What is the Unequivocality Test?=The Unequivocality (or res ipsa loquitur) test an attempt occurs when a person's conduct, standing alone, unambiguously manifests his criminal intent. What is the Defense of Impossibility?=At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense Do most courts recognize the defense of abandonment?=Many courts do not recognize the defense of abandonment. Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose. cont.=Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself. What are the elements of attempt under the MPC?=A criminal attempt under the Code contains two elements: (1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense. What is the mens rea of MPC attempt?=In general, a person is not guilty of a criminal attempt unless it was his purpose, i.e., his conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense. A person is likewise guilty of an attempt to cause a criminal result if he believes that the result will occur, even if it were not his conscious object to cause it. What is the actus reus of MPC attempt?=a defendant must have done or omitted to do something that constitutes a "substantial step in a course of conduct planned to culminate in his commission of the crime." unilateral approach (in conspiracy) MPC=not all the conspirators need to agree to commit a crime to impose criminal liability. What is the actus reus of common law solicitation?=The actus reus of a solicitation takes place when one person invites, requests, commands, hires, or encourages another to commit a particular offense. For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the substantive crime. The solicitation is complete upon communication of the solicitation to another. What is the mens rea of common law solicitation?=Common law solicitation is a specificintent crime. A person is not guilty of solicitation unless he intentionally commits the actus reus of the inchoate offense, i.e., he intentionally invites, requests, commands, hires, or encourages another to commit a crime, with the specific intent that the other person consummate the target crime. Is there solicitation if the solicitor intends to commit the substantive offense himself, but requests assistance by another?=No, no solicitation occurs if the solicitor intends to commit the substantive offense himself, but requests assistance by another. What are the elements of MPC solicitation?=The Model Penal Code provides that a person is guilty of solicitation to commit a crime if: 1.) his purpose is to promote or facilitate the commission of a substantive offense; and cont. 2.) with such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person's complicity in its commission or attempted commission. What is a big difference between common law solicitation and MPC solicitation?=Unlike at common law, under the Code, the relationship of the solicitor to the solicited party need not be that of accomplice to perpetrator. What are the elements of MPC Reunuciation?=The Model Code establishes a defense to solicitation of "renunciation of criminal purpose." A person is not guilty of solicitation if he: 1. completely and voluntarily renounces his criminal intent; and cont. 2. either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime. Under common law, must a conspiracy be based on an express agreement?=No, a conspiracy need not be based on an express agreement. Furthermore, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. [Blumenthal v. US (1947)] cont. a "conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense."[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime. Under the MPC, what are the four types of agreement that fall within the definition of conspiracy?=A person is guilty of conspiracy if he agrees to: 1. commit an offense 2. attempt to commit an offense 3. solicit another to commit an offense 4. aid another person in the planning or commission of the offense. When is a common law conspiracy considered complete?=A common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved. [United States v. Shabani, (1994)] cont. Today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy. In jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense. Instead, any act (and perhaps an omission), no matter how trivial, is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, including those who may have joined in the agreement after the act was committed. Most states apply the overtact rule to all crimes. Under the MPC, when must there be a requirement of proof of an overt act?=The Code's requirement of proof of an overt act only applies to cases involving a misdemeanor or a felony of the third degree. [MPC § 5.03(5)] Under the common law how many people must be involved for the act to be considered a conspiracy?=Common law conspiracy requires proof that at least two persons possessed the requisite mens rea of a conspiracy. For example, no conspiracy conviction is possible if one of the two persons is an undercover agent feigning agreement, or lacks the capacity to form the agreement due to mental illness. Under the MPC how many people must be involved for the act to be considered a conspiracy?=The Model Code departs significantly from the common law by establishing a unilateral approach to conspiracy liability. The Code focuses on the culpability of the defendant whose liability is in issue, rather than on that of the larger conspiratorial group. Under the MPC how many people must be involved for the act to be considered a conspiracy? cont.=Specifically, the Code provides, "A person is guilty of conspiracy with another person" if "he agrees with such other person" to commit an offense. The unilateral approach has been adopted in most states. In common law conspiracy, what is the mens rea requirement?=Common law conspiracy is a specificintent offense, requiring that two or more persons: (1) intend to agree; and (2) intend that the object of their agreement be achieved. Absence of either intent renders the defendants' conduct nonconspiratorial.cont. However, courts are divided over the interpretation of "intent." Some require that the parties have the unlawful result as their purpose and others allow conviction for conspiracy based on the parties' mere knowledge that such result would occur from their conduct. In the MPC conspiracy, what is the mens rea requirement?=The Code specifically provides that the conspiratorial agreement must be made "with the purpose of promoting or facilitating" the commission of the substantive offense. Thus, in jurisdictions following the Code, a conspiracy does not exist if one is aware of, but fails to share, another person's criminal purpose. What is the Liability of Parties for Substantive Offenses?=Each party to a conspiracy is liable for every offense committed by every other conspirator in furtherance of the unlawful agreement. Thus, an important issue in conspiracy trials may be to determine the precise confines of a conspiratorial enterprise. Who does common law consider to be a coconspirator?=To be regarded as a coconspirator, a person does not need to know the identity, or even of the existence, of every other member of the conspiracy, nor must he participate in every detail or event of the conspiracy. However, to be a coconspirator he must have a general awareness of the scope and the objective of the criminal enterprise. What is the MPC's approach to the common law's wheel and chain conspiracies?=(1), which sets forth a unilateral approach to conspiracy (2) provides that if a person "knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime." When is a person guilty of multiple conspiracies under the MPC?=The Model Penal Code provides that a person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are: 1. part of the same agreement OR 2. part of a continuous conspiratorial relationship. cont. Under common law was conspiracy to commit a felony a felony? No, at common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor. Under the MPC is the conspiracy to commit a felony a felony?=As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense. If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense. At common law does the offense of conspiracy merge into the attempted or completed offense that was the object of the conspiracy?=No, unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy. [Callanan v. US (1961). Under the MPC, does the offense of conspiracy merge into the attempted or completed offense that was the object of the conspiracy?=The Code merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted. At common law is Impossibility a defense to criminal conspiracy?=The majority, but not universal, rule is that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy. Under the MPC is Impossibility a defense to criminal conspiracy?=The Model Penal Code does not recognize a defense of factual or hybrid legal impossibility in conspiracy cases. At common law, what happens when there is Abandonment?=The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former coconspirators if he communicated his withdrawal to each coconspirator. Under the MPC what happens when there is Abandonment?=The Model Code's abandonment defense to the crime of conspiracy is more onerous than that of the common law as it requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent. What is the Common Law's LegislativeExemption Rule?=A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime. What is the MPC'S LegislativeExemption Rule?=Unless the legislature otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the Model Code if he would not be guilty of the consummated substantive offense: (1) under the law defining the crime; or (2) as an accomplice in its commission. cont.=A person is not guilty as an accomplice in the commission of an offense if he was the victim of the prohibited conduct, or if his conduct was "inevitably incident to its commission." Larceny (Common Law)=The trespassory taking and carrying away of personal property of another with intent to steal the property. Larceny is a crime against possession. Deadly ForceMPC=Deadly force is used whenever a person knowingly creates a substantial risk of inflicting serious bodily harm or death Shooting in the direction of another person (or at a vehicle in which a person is in) constitutes deadly force. Threat by brandishing weapon is not deadly force. Use of deadly force is always unjustified unless the person attacked can show that they faced a threat of force that was unlawful and exceptionally serious i. Any threat to inflict great bodily harm qualifies, even if not life threatening. Under MPC threats of kidnapping and rape are included. But MPC distinguishes robbery as a threat to property that imposes stricter limits on DF. Deadly Force Tests (Objective/Subjective tests)=Prevailing US rule that selfdefense can claim can only succeed when fear and use of force were both reasonable. Hard to say if people can act reasonably under threat of great harm and fear. Hybrid test: MPC must meet the standard of what a reasonable person would do in the actor's situation. Partially individualizes the objective standard. Types of things taken into account are past experiences, but not culture or psychological issues. Common Law: i. Majority Rule: requiring retreat in settings outside the home (including MPC); 1. Require retreat when possible or 2. Treat possibility of retreat as a factor when judging necessity ii. Minority Rule: noretreat rule (too difficult for jury to determine whether the D knew they could retreat with complete safety) MPC and SelfDefense Privilege=The use of deadly force is not justifiable if... the actor, with the purpose of causing death or seriously bodily harm, provoked the use of force against himself in the same encounter. Narrower forfeiture of privilege of self defense than common law. Point at which initial "victim" exceeds necessary force, original "assailant" is now allowed to use selfdefense. MPC 3.02 Justification Generally: Choice of Evils=(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided is by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his own conduct, the justification afforded by this section is unavailable in prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. MPC View of Necessity=MPC accepts the view that a principle of necessity, properly conceived, affords a general justification for conduct that would otherwise constitute an offense. Choice of evils requires the harm sought to be avoided ACTUALLY be greater than that which would be caused by commission of the offense, not that D believe it to be so. May involve an interpretation of the law of the offense, in light of the submission that the special circumstance could not have reasonably been intended for exclusion by the legislature, given the competing values to be weighed. Criticism is that it is difficult to apply prosecutorial discretion may be better. Common Law Necessity=Common Law: case by case analysis where choice is between evils [such cases are best decided as they arise] 1. Dudley and Stephens: taking a life is not justified by necessity; no defense for intentionally killing another in order to save yourself 2. Many times it is a case of trying to save one when all will otherwise die; ferry sinking, guy froze on latter and was thrown off justified MPCIntoxication=(1) Intoxication not a defense unless it negatives an element of the offense (2) immaterial for recklessness (3) Intoxication does not, in itself, constitute a mental disease (4) Intoxication which (a) is not selfinduced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its wrongfulness or to conform his conduct to the requirements of law. Provides evidence of intoxication to negative purpose or knowledge. If no mental state, it does not matter the reason for the lack of mental state. No inclusion of recklessness, even though the actor might no perceive the risk, b/c need to balance public safety interests. MPC equates drunkenness with recklessness Involuntary Intoxication=1. Common Law: allows D to assert defense of temporary legal insanity; but no defense if D is unable to meet test for legal insanity 2. MPC: if intoxicated to a lesser degree than insanity, D is treated like those that have difficulty in conforming to the law and are still responsible for violations CompetenceMPC=Lacking sufficient mental capacity to understand or participate. (cannot stand trial, enter guilty plea, be sentenced, or executed) MPC generally accepted test of competence: "No person who as a result of mental disease or defect lacks capacity to understand the proceeding against himself or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such capacity endures." MPCMental Disease or Defect Excluding Responsibility=(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only be repeated criminal or otherwise antisocial conduct MPC Differences= MPC broader test, thinks that no test is workable that calls for complete impairment of ability to know or to control. MPC asks if as a result of mental defect, D's substantial capacity to appreciate the criminality of his conduct or to conform his conduct to requirement of law. "Substantial" is a capacity of some appreciable magnitude when measured by the standard of humanity in general. MPC insanity defense widely used until Reagan's shooting (now minority); then states went back to M'Naghten (now majority)
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